VISVANATHA IYER Vs. CHIMMUKUTTI AMMA

JUDGEMENT

(1.) The 5 defendant, who is a Malabar jenmi, gave a kanom of certain property to Defendants 1 and 2 and they on the 6 March 1917, mortgaged the rights of the 1st defendant to Defendants 3 and 4 under Ex. A. The plaintiff who is the appellant is the assignee of the rights of Defendants 3 and 4. The 5 defandant filed a suit for redemption of the kanom, O.S. 52/19, against Defendants 1 and 2 without making Defendants 3 and 4 parties and he got a decree for redemption and paid the money into the hands of Defendants 1 and 2 before the present suit was instituted. The appellant sued on his mortgage in 1921 and the District Munsif gave him a personal decree against his mortgagors, Defendants 1 and 2, and also against their possessory interest in the property for what it might be worth.

(2.) It is argued in second appeal that the plaintiff should have been given something more than what he has got. He wants a decree against the 5 defendant for what is due to him under his mortgage and a decree for sale of interest of Defendants 1 and 2 as kanomdars unaffected by the redemption decree to which the appellant was not a party. It is true that the appellant is not bound by the decree for redemption in O.S. 52/19 to which he was not a party, but as he did not give notice to the 5 defendant that he had taken a mortgage of the 1 defendant's kanom right there was no obligation under Order 34, Rule 1, Civil P.C., on the part of the 5 defendant to make him a party to that suit.

(3.) question now is, What is the plaintiff entitled to by way of relief in the present suit ? He has been given a decree against the Defendants 1 and 2. He cannot be given a decree for sale of the suit property because he never possessed any rights over that seeing that his mortgagor could not give him a right that he had not got himself. What he got under his mortgage was a pledge for the kanomadar's interest. That interest consisted of a right to enjoy the property for 12 years, subject to redemption at the end of the time and to be compensated for tenant's improvements. In Moore's "Malabar Law", page 245, it is stated that the kanomdar cannot create a higher title than he possesses and if he grants a sub-mortgage, the sub-mortgagee can have no higher right than to enjoy the remainder of the mortgagee's term. The author presumably was there referring to a usufructuary sub-mortgage and not to a hypothecation as is the case here. It must be remembered that a kanom is an anomalous mortgage: being a combination of a usufructuary mortgage and a lease for 12 years. The kanomdar has no right to sell the jenmi property. His only right is to remain in possession until he is repaid the kanom amount plus the value of improvements. A mortgagee of that interest takes his mortgage subject to the liability of the kanomdar to be redeemed at the end of 12 years. As regards the right to have an account of the cost of improvements, the tenant's right is analogous to the right to a chose in action and the landlord is not affected by a transfer of it unless he has notice of it: see Vasudeva Shenoi V/s. Damodaran [1881] 23 Mad. 86. There is no privity between the jenmi (or owner of the property) and the mortgagee of kanomdar's interest who is not in possession of the estate. If the kanomdar failed to pay rent to the jenmi the jenmi could not recover it from the mortgagee because there is neither privity of estate nor privity of contract between them: vide Nochylliyil Eazhuvan V/s. Eralpad Raja [1917] 40 Mad. 1111. Now that the term of the kanom has come to an end and it has been redeemed the plaintiff who took a pledge of the kanomdar's interest has no subsisting interest. If the interest of the kanomdar be put up to auction, it is worth nothing as noticed by the District Munsiff, because no one will give anything for the rights of a kanom interest which has been terminated by payment of the kanom amount and the compensation for improvements at the close of the term.